R v Beaver, 2012 ABQB 385

Court of Queen ’ s Bench of Alberta Citation: R v Beaver, 2012 ABQB 385 Date: 20120612 Docket: 111467122U1 Registry: Wetaskiwin Between: Her Majesty the Queen - and - Bradley Wayne Beaver Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notice: The restriction ended February 3, 2014. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________

[ 1 ] Mr. Beaver seeks judicial interim release. There are 12 counts in the Information. They include 3 counts of attempted murder, 3 counts of discharging a firearm with intent to endanger life, 3 counts of reckless discharge of a firearm, 2 counts of aggravated assault of a peace officer, and 1 count of breach of recognizance by discharging a firearm. [ 2 ] The events which give rise to these charges occurred on December 3, 2011. The Crown alleges that at about 3:00 p.m. that day, Kevin Gionet drove to the mobile home which was Mr. Beaver ’ s residence. He was accompanied by a woman.

His purpose was to collect a debt of $1600 which Mr. Beaver owed him. He had been to Mr. Beaver ’ s residence 2 previous times in an effort to collect but had been unsuccessful. [ 3 ] Mr. Gionet stopped his vehicle facing the road with its back toward the mobile home. Before he got out of the vehicle the back window shattered. The woman said that she thought she had heard a gunshot. Mr. Gionet got out of the vehicle to examine the damage to the vehicle and discovered that he had been shot in the arm. He saw Mr. Beaver looking out the side window of the mobile home.

He got back in the vehicle and left the property. [ 4 ] At about 5:20 p.m. Mr. Gionet ’ s roommate called the RCMP and advised that Mr. Gionet had just come home and that he had been at Mr. Beaver ’ s residence and that he believed he had been shot by Mr. Beaver. The materials indicate that Mr. Gionet himself did not wish to involve the police. [ 5 ] RCMP officers went to Mr. Beaver ’ s property. They put it under watch. They did not observe any activity on the property. An RCMP tactical unit stationed in Red Deer was dispatched to the scene and arrived at about 9:00 p.m.

Members of this unit proceeded to “ clear ” several outbuildings while others maintained watch on the mobile home. One outbuilding was securely locked. A member of the tactical unit, Cpl. Peter King, determined that he could gain entry to this outbuilding by knocking the hinges off its door with his hammer. It was recognized that this would cause a lot of noise and could possibly provoke a reaction from anyone inside the mobile home.

The door of the outbuilding however could not be seen from the mobile home, so the operation could be conducted safely. [ 6 ] While members of the unit maintained a close watch on the mobile home, Cpl. King knocked the hinges off the door, gained entry to the securely locked outbuilding and “ cleared ” it. The members watching the mobile home observed no movement inside the mobile home when the noise was made. There were no lights on.

All that could be seen was the flickering light of a television. [ 7 ] Members of the tactical unit set up a “ Megabox ” which I understand to be a loud speaker that the unit members tasked with negotiating with the occupant of the mobile home would use to communicate from a distance. There was no working land line telephone in the mobile home. The Megabox did not work. [ 8 ] In order to determine whether or not there was anyone in the mobile home, the tactical unit members decided to deploy a “ recon scout ” which I understand to be a remotely controlled camera on wheels. Cpl.

King and other members approached a window of the mobile home to deploy the scout. Two members provided armed cover for the members who attempted to deploy the scout. Cpl. King smashed a window with his hammer so that another member could throw the scout into the mobile home. When the window was smashed there was a verbal reaction from inside the mobile home. As Cpl. King and the others retreated from the window, shots were fired from inside the mobile home. One of the tactical unit members who was providing armed cover, Cpl. Patrick MacIsaac, was hit by the shots. [ 9 ] Cpl.

King remembers that after these shots were fired other members of the tactical team yelled out “ Stop fuckin ’ shooting at the fuckin ’ police ” , “ Just stop fuckin ’ shooting, it ’ s the fucking police. It ’ s the police stop shooting. ” [ 10 ] Cpl. King went to Cpl. MacIsaac ’ s assistance and was in the course of assisting him to get to cover when a second round of shots was fired from the trailer. Cpl. King was hit. The Crown alleges that Mr. Beaver fired this second round of shots while holding the firearm out the window of the mobile home. Members of the tactical unit fired on the trailer and Mr.

Beaver was hit. [ 11 ] The injured police members were taken to hospital. Cpl. King was released after treatment and returned to work a month later. Cpl. MacIsaac required surgery to his left arm and hospitalization.

[ 12 ] Mr. Beaver was shot in the shoulder. He was treated in hospital for several days. Early on it appeared he might lose his arm, but he received further treatment and his arm was saved. [ 13 ] There is some evidence to indicate that Mr. Beaver was involved in methamphetamine use. It appears as well that he was in significant financial difficulty and expected that creditors had instructed seizure of his assets. [ 14 ] Mr. Beaver does not contest that he fired the shots as alleged. He says that prior to December 3, 2011, he had contacted the RCMP on several occasions to report that Mr.

Gionet was attempting to extort money from him, had threatened to burn his home, and had set fire to some of his clothing. Mr. Royal acknowledges that Mr. Beaver had exercised seriously flawed judgment in reacting to Mr. Gionet ’ s visit on the afternoon of December 3, 2011 by discharging a firearm at his vehicle. [ 15 ] Mr. Beaver denies that he knew that the police were on his property later that night. He denies that they ever announced their presence even at the one and only point they say they did - after they broke the window and Mr. Beaver reacted by shooting his firearm. Mr.

Beaver denies that he knew he was firing at police – he thought Mr. Gionet had returned to respond with violence to the events of the afternoon. [ 16 ] Mr. Beaver is 38 years old. He has no criminal record. [ 17 ] The 12 th count of the Information, breach of recognizance, is in relation to a recognizance he entered after being charged with assaulting his daughter. Those charges have since been stayed. [ 18 ] The preliminary inquiry has been scheduled for four days in January 2013 - more than 13 months after the events that resulted in the charges. Counsel anticipate that if Mr.

Beaver is committed to stand trial, which seems very likely, his trial in this Court would not occur before the fall of 2013, almost 2 years after the events giving rise to the charges. [ 19 ] Mr. Beaver has the very strong support of his parents who were both in Court during the hearing of this application. They are willing to put up a very substantial deposit, $50,000, to secure his release on bail. [ 20 ] At the time of Mr.

Beaver ’ s appearance before a Justice of the Peace following the laying of the charges he was ordered not to have contact with a number of people including his girlfriend who had been with him in the mobile home at the time of the events of December 3, was initially arrested, was not charged, but is a witness. The Crown alleges that Mr. Beaver breached that order by calling his girlfriend on the telephone from the Edmonton Remand Centre on 7 occasions between December 19 and 29, 2011. The conversations were intercepted. The materials before me include a brief precis of each call. Mr.

Beaver has been charged with breach of the order. The Crown suggests that this is relevant to the question of whether it is likely he will comply with conditions of the judicial interim release he seeks. Mr. Royal observes that there is little indication in the precis of the telephone conversations in question that the conversation was of the nature the order was intended to prevent. [ 21 ] Mr. Beaver applied for judicial interim release in the Provincial Court on March 28, 2012. The Provincial Court Judge held that Mr. Beaver ’ s detention was not necessary in order to ensure his appearance in these proceedings.

As to the second ground the Provincial Court Judge said: The accused . . . is 38 years of age, apparently has recently fallen on difficult times, but has not been a problem for society, with one possible exception . . . [the assault charge which has since been stayed]. The Crown describes his conduct that night as gratuitous – being of gratuitous violence, saying it was deliberate and escalating. Clearly these tragic circumstances escalated over a relatively short period of time, but the accused offers an explanation of being fearful of being under attack from Mr.

Gionet and possibly others, and there are some aspects of the police version which suggest that – which support that, it would suggest, that his conduct was not gratuitous or deliberate, but shall I say defensive.

It may be that onerous release conditions – with onerous release conditions, given his lack of a record, and any offences, let alone serious offences of violence or involving use of firearms or other weapons, could satisfy the need and the requirement upon me to protect the public. [ 22 ] I agree with the Provincial Court Judge ’ s conclusions regarding the first and second grounds listed in s. 515(10). In so concluding I have considered whether Mr.

Beaver ’ s alleged breach of the no contact order imposed at his first appearance on these charges justify a different conclusion and have concluded it does not. [ 23 ] The Provincial Court Judge denied release on the third ground listed in s. 515(10). That

section provides that detention in custody is justified: (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution ’ s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 24 ] The Provincial Court Judge clearly gave careful consideration to the applicability of the third ground in this case.

He said: In my review, his continued detention is necessary because of my consideration of the tertiary ground. I have not come to this consideration lightly, but given that – and I don ’ t think there ’ s any dispute on this, these are grave offences, firearms were used, and the accused faces a serious period of incarceration should he be convicted. But when those – those factors are considered in the light of the allegations, as to what he did, and what he has admitted to doing, I ’ m afraid I can come to no other conclusion. I note particularly regarding the initial shooting [involving Mr.

Gionet in the afternoon] . . . all that I have heard . . . does not support the accused ’ s view that he shot in the air, and there is not a great deal of evidence concerning this, but certainly based upon what happened later, the firings later on and the fact that the vehicle was fired at, causes me a great deal of concern, because I have heard nothing which would suggest to me any justification of the accused reacting in that manner so quickly as he did, without them having done anything other than arrive at his property.

That is a very significant factor in my decision. . . . [As concerns the firings involving the police officers] . . . there would appear to be a very real issue over whether the police initially appropriately identified themselves, it ’ s been acknowledged that unfortunately that a megaphone was not available, but I have significant evidence . . .[that the officers called out] . . . identifying themselves as officers . . . after the first volley of shots at the officer. . . and I also had the troubling evidence from the Crown that words were spoken by Mr.

Beaver to acknowledge that he knew that it was officers, at least the [last time shots were] fired. [ 25 ] As I understand it, this last point is a reference to a statement the police allege Mr. Beaver made to a person in authority after his arrest in which he said that after the first volley, he heard someone say “ cops ” , that while making the statement Mr. Beaver, while smiling, admitted that he “ got two of them ” . I understand Mr. Beaver denies making such a statement or expressing any form of delight in the fact that two police officers were shot.

[26] In considering the careful reasons of the Provincial Court Judge, I note that there is information before me that apparentlywas not before him. The Provincial Court Judge expressed particular concern in the context of the third ground, that he had heardnothing to suggest any justification for Mr. Beaver shooting at Mr. Gionet’s truck when it had only just arrived on his property. Mr.Royal advised on the application before me, that prior to Mr. Gionet’s attendance at Mr. Beaver’s property that day, Mr. Beaver hadcomplained several times to the police that Mr.

Gionet had attempted to extort money from him, had threatened to burn down his mobilehome and had set fire to some of his clothing. Whether this occurred and whether or not it provided Mr. Beaver with a legal justificationfor his actions are points to be addressed at trial. For present purposes, that Mr. Beaver subjectively believed his action was justifiedwhen he shot at Mr. Gionet’s truck appears plausible. [27] There is no doubt that the offences charged are very serious. The strength of the prosecution’s case, so far as it concerns Mr.Beaver’s shooting at Mr.

Gionet’s truck, depends on the extent to which what Mr. Beaver subjectively believed was justified, gave himlegal justification. The strength of the prosecution’s case, so far as the counts relating to the shooting at the police officers, depends to alarge extent on disputed evidence as to whether Mr. Beaver knew or ought to have known that it was the police who had smashed hiswindow without warning and that it was not the man who he believed was intending to do him violence.

In my view it would not beaccurate to characterize the strength of the prosecution’s case as overwhelming. [28] That the circumstances include Mr. Beaver using a firearm gives heightened concern that granting Mr. Beaver bail couldshake confidence in the administration of justice. It also means that if convicted Mr. Beaver will face a minimum term of imprisonmentin excess of three years. [29] Balancing these considerations are the fact that Mr. Beaver is presumed innocent until the Crown establishes at trial that,beyond a reasonable doubt, he is guilty.

In other words, the system of administration of justice in which confidence must be maintainedis one which accepts as fundamentally obvious that an accused person must not be punished for the crimes it is alleged he hascommitted, but rather, only for the crimes it has been proved he has committed.

Pre-trial detention in custody is clearly inconsistent withthat fundamentally obvious truth and must be ordered only where the circumstances clearly justify overriding it. [30] Where the accused’s detention is not required to ensure his attendance at trial or for the protection or safety of the public,release on bail will only jeopardize confidence in the administration of justice in a rare case. That rare case will involve a heinous crimeand overwhelming evidence.

It will involve a crime that is unexplained and unexplainable. (R v Hall, 2002 SCC 64 , [2002] 3SCR 309; 167 CCC (3d) 449) [31] In my assessment this is not such a case. Though serious, the allegations against Mr. Beaver if proved would not constitute“heinous” crimes. The explanation offered for Mr. Beaver’s actions, whether or not they give him a defence, in my view make itinaccurate to describe his actions as utterly odious or wicked. As noted the Crown’s case, though it may be strong with regard to at leastsome of the counts in the Information, is not accurately described as overwhelming. And Mr.

Beaver’s version of events provides anexplanation for his actions if not an excuse. The crimes (if they are crimes) are not unexplained or unexplainable. [32] After considering what was before the Provincial Court Judge, the reasons given by the Provincial Court Judge, and the newinformation that has been put before me, and having concluded that Mr. Beaver’s detention pending trial is not justified, it is my duty tovacate the order under review and to substitute the order I think appropriate. (see R v McKinnon, 2004 ABQB 604) [33] In my view Mr.

Beaver’s detention is not necessary for any of the three grounds listed in s. 515(10). [34] I grant Mr. Beaver’s application. I order that he be released upon the deposit of $50,000 cash bail and upon his entering intoa recognizance with the following conditions. He shall:

a) report within 24 hours of his release in person to a bail supervisor and thereafter report in person to the bail supervisor or to someother authority as designated, and at the time directed, by the bail supervisor. This may include the Drayton Valley RCMP. Suchreporting shall be as frequently as may be directed by the bail supervisor but no less frequently than once per week;

b) remain within the Province of Alberta;

c) reside with and in the residence of his parents whose names and address shall appear in the recognizance;

d) be in that residence between the hours of 9:00 p.m. and 7:00 a.m. except if required to be absent from the residence because of a medical emergency and except as authorized in advance and in writing by his bail supervisor;

e) refrain absolutely from the possession or consumption of alcohol or any non-medically prescribed drugs;

f) refrain absolutely from the possession of any firearms, ammunition or explosive substances;

g) have no contact with Candace Proctor, Kevin Gionet, Jason Mishak, Pauline Williams and any other persons who counsel agree should be listed in the recognizance;

h) not attend within one kilometre of the home of Jason Mishak and Kevin Gionet, the address of which shall be stated in the recognizance. Heard at the City of Wetaskiwin, Alberta on the 5 th day of June 2012. Dated at the City of Edmonton, Alberta this 12 th day of June 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Rod Clark for the Crown Peter J. Royal, Q.C. for the Accused